Citation Nr: 0901337
Decision Date: 01/13/09 Archive Date: 01/22/09
DOCKET NO. 07-33 374 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for scars, to include a
left ear laceration, head scars, and facial scars.
2. Entitlement to service connection for a head injury.
3. Entitlement to service connection for a back injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
S. Layton, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1981 to
February 1984.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2006 rating decision by the
Detroit, Michigan Regional Office (RO) of the Department of
Veterans Affairs (VA).
The Board notes that in his original claim filed in May 2005,
the veteran filed separate claims for an ear amputation, head
scars, and facial scars. For the sake of judicial economy,
and given the facts of this case, the Board has combined
these issues within this decision.
The veteran testified before the undersigned Acting Veterans
Law Judge at the Detroit RO in November 2008. A transcript
of the hearing is of record.
The issues of entitlement to service connection for a head
injury and back injury are addressed in the REMAND portion of
the decision below and are REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the issues on appeal has been accomplished.
2. The veteran does not have a current diagnosis of a left
ear injury/laceration, head scars, or facial scars.
CONCLUSION OF LAW
A left ear injury, head scars, and facial scars were not
incurred as due to service. 38 U.S.C.A. §§ 1101, 1131, 1154,
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§
3.102, 3.159, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's duties
The Veterans Claims Assistance Act of 2000 (VCAA) and
implementing regulations impose obligations on VA to provide
claimants with notice and assistance. 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159,
3.326(a).
A proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide. 38 U.S.C.A.
§ 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA
notification should be presumed prejudicial, and VA has the
burden of rebutting this presumption. Sanders v. Nicholson,
487 F.3d 881 (Fed. Cir. 2007).
In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the
United States Court of Appeals for the Federal Circuit
(Federal Circuit) reaffirmed principles set forth in earlier
Federal Circuit and United States Court of Appeals for
Veterans Claims (Court) cases in regard to the necessity of
both a specific VCAA notification letter and an adjudication
of the claim at issue following that letter. See also
Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v.
Nicholson, 20 Vet. App. 537 (2006).
The Mayfield line of decisions reflects that a comprehensive
VCAA letter, as opposed to a patchwork of other post-
decisional documents (e.g., Statements or Supplemental
Statements of the Case), is required to meet VA's
notification requirements. At the same time, VCAA
notification does not require an analysis of the evidence
already contained in the record and any inadequacies of such
evidence, as that would constitute a preadjudication
inconsistent with applicable law. The VCAA letter should be
sent prior to the appealed rating decision or, if sent after
the rating decision, before a readjudication of the appeal.
A Supplemental Statement of the Case, when issued following a
VCAA notification letter, satisfies the due process and
notification requirements for an adjudicative decision for
these purposes.
In the present case, the veteran was issued a VCAA letter
meeting the specific requirements of C.F.R. § 3.159(b)(1) in
July 2005. As the initial notification was provided prior to
the appealed rating decision, this case raises no procedural
concerns in view of the Mayfield line of decisions.
The Board is also aware of the considerations of the Court in
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
regarding the need for notification that a disability rating
and an effective date for the award of benefits will be
assigned if service connection is awarded. An additional
notice as to these matters was provided in March 2006. The
Board finds that this action effectively satisfies VA's
requirements in view of Dingess.
As to VA's duty to assist the veteran with the obtaining of
evidence necessary to substantiate a claim, under 38 U.S.C.A.
§ 5103A, in this case VA has obtained records of treatment
reported by the veteran, and there is no indication from the
claims file of additional medical treatment for which VA has
not obtained, or made sufficient efforts to obtain,
corresponding records. While the veteran has reported
treatment from the Memorial Health University Medical Center,
that facility has reported that it has no records of such
treatment in its possession. Additionally, while the veteran
reported being injured in an automobile accident while on
active duty, all attempts to retrieve records detailing the
accident from military and civilian sources have yielded
negative results.
The Board notes that the veteran has not been afforded a VA
examination in conjunction with this appeal but is of the
opinion that such an examination is unnecessary. There is no
suggestion, except by unsubstantiated allegation, that the
veteran has a left ear disorder, head scars, and facial scars
as a result of an established event, injury or disease in
service. 38 C.F.R. § 3.159(c)(4). See Wells v. Principi,
326 F.3d 1381, 1384 (Fed. Cir. 2003); McClendon v. Nicholson,
20 Vet. App. 79 (2006). See also 38 C.F.R. § 3.159(c)(4).
The Board finds the available medical evidence is sufficient
for an adequate determination.
In summary, all relevant facts have been properly developed
in regard to the veteran's claim, and no further assistance
is required in order to comply with VA's statutory duty to
assist with the development of facts pertinent to the claim.
See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
Accordingly, the Board finds that no prejudice to the veteran
will result from an adjudication of this appeal in this Board
decision. Rather, remanding this case for further VCAA
development would be an essentially redundant exercise and
would result only in additional delay with no benefit to the
veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993);
see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
II. Applicable laws and regulations
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).
Service connection requires competent evidence showing: (1)
the existence of a present disability; (2) in-service
incurrence or aggravation of a disease or injury; and (3) a
causal relationship between the present disability and the
disease or injury incurred or aggravated during service.
Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004);
see also Caluza v. Brown, 7 Vet. App. 498 (1995).
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time. If chronicity in service
is not established, a showing of continuity of symptoms after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge when all of the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
III. Left Ear Injury, Head Scars, Facial Scars
The Board has reviewed the veteran's service medical records
and observes that a medical triage note from October 1981
indicates that the veteran complained of pain in his left ear
due to an automobile accident that occurred two weeks
previously. It was noted that his left ear was bandaged, and
he had experienced a traumatic laceration of his ear. An
additional treatment note from November 1981 indicates that
his ear was healing, but some scabs were still present.
There were no notations of head or facial scars. In
February 1984, the veteran waived his right to a separation
medical examination.
Subsequent to service, the earliest medical evidence
containing findings pertinent to the veteran's current claim
is a VA medical center record from October 2003. The
examiner stated that an external inspection of the veteran's
ears revealed no acute abnormality. Inspection of the skin
revealed no acute rashes, lesions, or induration. Additional
VA records from March 2005 and June 2005 show that the
veteran's skin was warm, dry, of a normal color, and had no
lesions or rashes.
A statement from the veteran's brother, received by the RO in
December 2005, states that the veteran was involved in an
automobile accident in May 1983. He stated that the veteran
had a large cut from the bottom of his left ear to the top of
his head, and his skull was split open to the point where his
brain was visible.
During his November 2008 VA Travel Board hearing, the veteran
reported that while on active duty, he was involved in a
serious automobile accident. The veteran indicated that
while he had received medical attention for sleep apnea,
headaches, and a back injury, he had not been treated for
scars on his ear, head, and face.
The Board has reviewed the competent medical evidence of
record cited above and finds that this evidence shows no
current diagnosis or treatment for a left ear injury, head
scars, or facial scars whatsoever. No such findings were
shown upon examination in the current VA medical records.
Consequently, the Board does not find that the competent
medical evidence of record supports the veteran's claim.
Currently, the only evidence of record supporting the
veteran's claim is his own lay opinion, as indicated in his
November 2008 VA Travel Board hearing testimony, and the
December 2005 statement from his brother. The veteran and
his brother, however, have not been shown to possess the
requisite medical training, expertise, or credentials needed
to render a diagnosis or a competent opinion as to medical
causation. Accordingly, their lay opinions do not constitute
competent medical evidence and lack probative value. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see
also Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd,
142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195,
201 (1996).
To date, the RO has not afforded the veteran a fully
comprehensive VA examination, with a report containing an
opinion as to the etiology of these three claimed disorders.
Such an opinion is "necessary" under 38 U.S.C.A. § 5103A(d)
when: (1) there is competent evidence that the veteran has a
current disability (or persistent or recurrent symptoms of a
disability), (2) there is evidence establishing that the
veteran suffered an event, injury or disease in service or
has a disease or symptoms of a disease within a specified
presumptive period, (3) there is an indication the current
disability or symptoms may be associated with service, and
(4) there is not sufficient medical evidence to make a
decision. See 38 U.S.C.A. § 5103A(c)(4).
In this case, however, there is no evidence linking the
veteran's three claimed disorders to service and no
reasonable possibility that a VA examination would result in
findings favorable to the veteran. Accordingly, the Board
finds that etiology opinions are not "necessary." See
generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003).
Overall, the preponderance of the evidence is against the
veteran's claim for service connection for a left ear
laceration, head scars, and facial scars, and this claim must
be denied. Again, as the preponderance of the evidence is
against the veteran's claim, 38 U.S.C.A. § 5107(b) is not
applicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).
ORDER
Entitlement to service connection for scars, to include a
left ear laceration, head scars, and facial scars, is denied.
REMAND
During the November 2008 VA Travel Board hearing, the veteran
reported that he had seen a neurologist at VAMC Detroit for
headaches and sleep apnea. He also said that he had seen a
chiropractor, D.T., out of Royal Oak, Michigan, who thought
that the veteran might have spinal stenosis. Records of such
treatment should be requested and, if obtained, added to the
claims file, as no such records are included in the claims
file presently. 38 C.F.R. § 3.159(c)(1).
Accordingly, the case is REMANDED for the following action:
1. After securing signed release
forms, with full address information,
the AMC/RO should contact the
chiropractor, D.T., out of Royal Oak,
Michigan, and VAMC Detroit and request
all records of treatment of the
veteran. All records obtained pursuant
to this request must be included in the
veteran's claims file. If the search
for such records has negative results,
documentation to that effect should be
included in the claims file.
2. After completion of the above
development and any other development
deemed necessary, the veteran's claims
for service connection for a head
injury and a back injury disease should
be readjudicated. If the determination
of either claim remains adverse to the
veteran, he and his representative
should be furnished with a Supplemental
Statement of the Case and given an
opportunity to respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition.
The veteran has the right to submit additional evidence and
argument on this matter. Kutscherousky v. West, 12 Vet. App.
369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
______________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs